McKay v. United States
| Decision Date | 24 February 2023 |
| Docket Number | Civil Action 1:20-00286-WS-N,Criminal 1:19-00041-WS-N |
| Parties | TOBIAS DESHAWN McKAY, BOP Prisoner No. 17506-003, Movant, v. UNITED STATES OF AMERICA Respondent. |
| Court | U.S. District Court — Southern District of Alabama |
REPORT AND RECOMMENDATION
Tobias Deshawn McKay, a federal prisoner proceeding without counsel (pro se), filed a Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255 (Doc 50)[1] challenging the Court's judgment entered against him in the above-styled criminal action. (Doc. 41). McKay certifies delivery of his motion on May 21, 2020.[2](Doc. 50 PageID.190). McKay's motion was referred to the undersigned Magistrate Judge for appropriate action pursuant to S.D. Ala. GenLR 72(b); (electronic reference 5/26/2020).[3] Upon consideration, and for the reasons stated herein, the undersigned RECOMMENDS McKay's § 2255 motion be DISMISSED with prejudice.
On April 14, 2019, McKay entered into a guilty plea agreement with the government on three counts alleged against him: (1) possession of cocaine with intent to distribute (21 U.S.C. § 846), (2) possession of a firearm by a felon (18 U.S.C. § 922(g)(1)), and (3) using, carrying or possessing a firearm in furtherance of and/or in relation to a drug trafficking felony (18 U.S.C. § 924(c)(1)(A)). (Doc. 31). Judgment was entered against McKay on September 10, 2019, and he was sentenced to 322 months' imprisonment plus eight years of supervised release with conditions. (Doc. 41). McKay appealed to the Eleventh Circuit Court of Appeals, though his appeal was dismissed on November 27, 2019, for failure to prosecute. (Docs. 44-46, 48). See USA v. Tobias McKay, USCA 11 Dkt. 19-13810-B (11th Cir. 2019).
On May 21, 2020, McKay filed the present § 2255 motion, along with a memorandum in support. (Docs. 50, 50-1). On preliminary review of McKay's motion pursuant to Rule 4(b) of the Rules Governing Section 2255 Proceedings for the United States District Courts (“§ 2255 Rules”), the undersigned found dismissal was not plainly warranted, and in an order dated August 31, 2020, instructed the government to file and serve an answer, motion or other appropriate response by October 30, 2020. (Doc. 51, PageID.216). Pursuant to Rule 5(d) of the § 2255 Rules, McKay was also given 40 days (from receipt of the government's response) to file any reply. (Id.). The transcript from McKay's plea hearing was entered into the record on October 8, 2020 (Doc. 53), and the government filed a timely response in opposition to McKay's § 2255 motion on October 30, 2020. (Doc. 54). McKay did not file a reply, nor has he filed anything further with the Court. McKay's § 2255 motion now fully briefed and ripe for disposition and/or further development under the § 2255 Rules.
Pursuant to 28 U.S.C. § 2255, a person in federal custody may move to vacate, set aside, or correct his sentence. This statute permits collateral challenges in four circumstances: (1) the imposed sentence violated the Constitution or laws of the United States, (2) the Court exceeded its jurisdiction to impose the sentence, (3) the imposed sentence exceeded the maximum authorized by law, or (4) the imposed sentence is otherwise subject to collateral attack. 28 U.S.C. § 2255(a).
However, “a collateral challenge, such as a § 2255 motion, may not be a surrogate for direct appeal.” Lynn v. United States, 365 F.3d 1225, 1232 (citations omitted). Accordingly, “general rules have developed that: (1) a defendant must assert all available claims on direct appeal, and (2) relief under 28 U.S.C. § 2255 is reserved for transgressions of constitutional rights and for that narrow compass of other injury that could not have been raised in direct appeal and would, if condoned, result in a complete miscarriage of justice.” Id. (citations and quotations omitted).
This first general rule is commonly known as procedural default (not to be conflated with the procedural bar), which “is neither statutory nor a constitutional requirement, but it is a doctrine adhered to by the courts to conserve judicial resources and to respect the law's important interest in the finality of judgments.” McKay v. United States, 657 F.3d 1190, 1196 (11th Cir. 2011) (citing Massaro v. United States, 538 U.S. 500, 504 (2003)). The procedural default rule “applies to all claims, including constitutional claims,” and “the question is not whether legal developments or new evidence has made a claim easier or better, but whether at the time of the direct appeal the claim was available at all.” Lynn, 365 F.3d at 1234-35 (citations omitted). As the Eleventh Circuit recently clarified:
The terms “procedurally barred” and “procedurally defaulted” have distinct meanings. A procedural bar prevents a defendant from raising arguments in a § 2255 proceeding that he raised and we rejected on direct appeal. Stoufflet v. United States, 757 F.3d 1236, 1239 (11th Cir. 2014) (collecting cases) ... By contrast, a “procedural default” occurs when a defendant raises a new challenge to his conviction or sentence in a § 2255 motion. Lynn v. United States, 365 F.3d 1225, 1234 (11th Cir. 2004). If a defendant fails to raise an issue on direct appeal, he may not present the issue in a § 2255 proceeding unless his procedural default is excused. McKay v. United States, 657 F.3d 1190, 1196 (11th Cir. 2011). To overcome a procedural default, a defendant must show either (1) cause and prejudice, or (2) a miscarriage of justice, or actual innocence. Id. Seabrooks v. United States, 32 F.4th 1375, 1383-84 (11th Cir. 2022). See McKay, 657 F.3d at 1196 ().
Under the “cause and prejudice” exception, a movant may overcome procedural default “by showing cause for not raising the claim of error on direct appeal and actual prejudice from the alleged error.” McKay, 657 F.3d at 1196. To show cause, “a defendant must prove that some objective factor external to the defense impeded (sic.) efforts to raise the claim previously.” Lynn, 365 F.3d at 1235, n.20 (internal quotations and citation omitted). This cause must also result in “actual prejudice” -that is, it must have “worked to his actual and substantial disadvantage.” Lomelo v. United States, 891 F.2d 1512, 1515-16 (11th Cir. 1990).
The “actual innocence” exception means exactly what it says. See McKay, 657 F.3d at 1196 (citation omitted) ( “movant's procedural default is excused if he can show that he is actually innocent either of the crime of conviction or, in the capital sentencing context, of the sentence itself.”). This narrow exception permits a court to allow defendants to proceed under § 2255 “despite his failure to show cause for procedural default if a constitutional violation has probably resulted in the conviction of one who is actually innocent.” Lynn, 365 F.3d at 1235-36 (citations and internal quotation omitted). Actual innocence in this context - whether applied to the crime itself or the associated sentence - “means factual innocence, not mere legal insufficiency.” McKay, 657 F.3d at 1197-98 (citations omitted).
McKay's § 2255 motion raises two primary grounds for reversal of his conviction and sentence. First, he argues his plea was not knowing and intelligent, therefore in violation of Fed. R. Crim. Pro. 11. (Docs. 50, 50-1).[4] Second, McKay argues his conviction on counts two and three should be invalidated in light of the decision in Rehaif v. United States, 139 S.Ct. 2191, 204 L.Ed.2d 594 (2019). (Id.). The government's response opposes reversal and/or vacatur of McKay's conviction and sentence, arguing it is not warranted because his arguments are: (1) procedurally defaulted, (2) otherwise meritless and (3) not impacted by Rehaif. (Doc. 54).
Because procedural default is a threshold issue, Doorbal v. Dep't of Corr., 572 F.3d 1222, 1228 (11th Cir. 2009) (citation omitted), the undersigned first addresses whether the arguments in McKay's motion are procedurally defaulted.
Typically, “a defendant generally must advance an available challenge to a criminal conviction or sentence on direct appeal or else the defendant is barred from presenting that claim in a § 2255 proceeding.” McKay, 657 F.3d at 1196. In the present case, McKay directly appealed his sentence and conviction to the Eleventh Circuit; however, his appeal was dismissed for failure to prosecute. (Doc. 50, PageID.181). Thus, because McKay did not raise the arguments presented in his § 2255 motion on direct appeal when provided the opportunity to do so, those arguments are procedurally defaulted here. Accord. Seabrooks, 32 F.4th at 1383-84 (citing McKay, 657 F.3d at 1196) (“If a defendant fails to raise an issue on direct appeal, he may not present the issue in a § 2255 proceeding unless his procedural default is excused.”). The government has asserted procedural default as a defense in its response brief. (Doc. 54). Thus, the Court must determine whether McKay has shown that one of the procedural default exceptions applies to his claims.
Under this exception, “a § 2255 movant can avoid application of the procedural default bar by ‘show[ing] cause for not raising the claim of error on direct appeal and actual prejudice from the alleged error.'” McKay, 657 F.3d at 1196 (citation omitted) (alterations in original). Generally, if a movant does not argue that an exception applies, it need not be addressed. See id. And initially, the undersigned notes that McKay makes no explicit showing of cause and prejudice. However, the undersigned liberally construes McKay's § 2255 motion as implicitly asserting an...
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